Jewish World Review Feb. 16, 2000 /10 Adar I, 5760
In the case of Gary Gauger, it was his demeanor -- his peculiarity -- that made police suspect him in the deaths of both of his parents. An aging hippie, he had placed a call to police after finding the body of his father in a pool of blood. When police arrived, they found his mother, too. Both Gaugers' throats had been slashed. Yet their son, Gary, who lived with them, quietly tended his tomato plants while police investigated. That, along with his flat tone of voice when he reported the crime to 911 operators, and the fact that there was no sign of forced entry or robbery, convinced police that Gauger had done it.
Gary Gauger was interrogated for 18 hours. A law-abiding sort who trusted the police, Gauger became unnerved when police told him (falsely) that they had a "stack of evidence" against him. (Police are permitted to lie to suspects.) Gauger came to doubt himself and eventually even to believe that he might have committed the heinous crime and then blacked out as he had sometimes done after drinking bouts in his younger days. He signed a confession. His trial was short. The jury took only three hours to find him guilty. The judge sentenced Gauger to death.
While Gauger was awaiting execution, the FBI happened to eavesdrop on conversations among members of a motorcycle gang. The Gauger murders were mentioned knowingly. The FBI closed in on two suspects, but a federal judge ruled the wiretaps illegal and threw out the indictments.
The FBI's contribution, along with the vigorous efforts of Gauger's sister, Ginger, who never believed in her brother's guilt, combined to free Gary Gauger. He became one of the 74 men freed from death row over the past 25 years (10 due to DNA evidence).
Does that seem like a lot? It does to me -- even knowing that during that same 25 year period, more than half a million Americans were murdered and that the chances of any given murderer being executed are less than one in 1000.
Last week, Gov. George Ryan of Illinois issued a moratorium on executions. He was shaken by news that in the past decade Illinois had freed 13 men from death row after the state had determined their innocence. Of course, it wasn't that Illinois was carelessly executing every Tom, Dick and Harry either. In that same decade only a dozen executions had been carried out.
But when DNA or other evidence reveals that a man who was only days or months away from execution was actually innocent, as has happened in a non-trivial number of cases, even staunch advocates of the ultimate penalty must pause. Add to that the current scandal in Los Angeles in which police are said to have been involved in framing numerous people -- and the wrongful convictions and sentences of dozens of innocent day-care providers falsely accused of child sexual abuse -- and you have a picture of human error that may tip the balance away from capital punishment. It isn't that the day-care providers faced the death penalty, but rather the ease with which juries could sentence obviously innocent people in the heat of hysteria that unnerves one.
Of course, on the other side of the scales of justice are the heinous criminals, those like Timothy McVeigh or Ted Kaczynski, whose guilt is beyond doubt. Is there any way to call life imprisonment an adequate punishment for someone like that? The small industry of anti-death penalty advocates is great at documenting the mistakes (though no one has yet produced an example of someone wrongfully executed), but they do not grapple with the moral problem of letting the McVeighs of this world continue to breathe, eat and have whatever limited pleasures are available in prison while their victims are dead and their victims' families are bereft.
The answer must be more care -- not more appeals, as we already permit
death penalty appeals to drag on for years and years. But videotaping all
interrogations, permitting access to post-conviction DNA evidence and
limiting executions to those cases where doubt is pretty much non-existent
should calm fears of committing irreversible